Mrs G Paul-Eke v Birmingham City Council: 1300969/2018
| Judgment Date | 02 August 2021 |
| Citation | 1300969/2018 |
| Published date | 11 August 2021 |
| Court | Employment Tribunal |
| Subject Matter | Disability Discrimination |
Case Number 1300969/2018
1
VCD EMPLOYMENT TRIBUNALS
BETWEEN
Claimant Respondent
AND Birmingham City Council
Mrs G Paul-Eke
RESERVED JUDGMENT OF THE EMPLOYMENT TRIBUNAL
HELD AT Birmingham ON 11,12,13,16 & 17 March &
25, 26 & 27 August &
16 & 17 September &
20, 21 & 22 October 2020
Reserved Judgement 26 November 2020
EMPLOYMENT JUDGE Dean
MEMBERS Dr G Hammersley
Mr R Virdee
Representation
For the Claimant: in person
For the Respondent: Ms E Hodgetts, of counsel
JUDGMENT
The judgment of the Tribunal is that
1. The claimant was not unfairly dismissed by the respondent. The
complaint is dismissed.
2. The tribunal does not have jurisdiction to determine complaints that
relate to claims that are of conduct occurring before 8 July 2018
presented out of time.
3. The claimants complaints of unlawful discrimination because of the
protected characteristic of race and disability do not succeed and are
dismissed in their entirety.
4. The respondent in breach of contract failed to pay the claimant in full in
lieu of her contractual notice period. The respondent is ordered to pay
to the claimant damages in the sum of £368.82.
REASONS
Case Number 1300969/2018
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Background
1. The claimant in this case was employed by the respondent until
termination of her employment with effect on the 10th October 2017.
The claimant presented a claim form on the 26th February 2018
following a period of early conciliation. The claimant brings claims of
Unfair Dismissal, Race Discrimination, Disability Discrimination, notice
pay and for victimisation. In essence the claim is that the claimant
says the way in which the respondent treated her after she suffered a
workplace injury and was signed off work for substantial periods of
time and ultimately her dismissal was unfair and discriminatory which
the respondent says was on grounds of capability. The claimant
asserts that she has been unfairly dismissed and that she has been
discriminated against because of matters arising from her disability
and the respondents have failed to make reasonable adjustments and
has caused her to suffer harassment because of her disability. The
claimant complains that she has been unlawful discriminated against
because of her race and has been directly discriminated by the
respondent’s treatment of her because of her race.
2. The claimant identifies her race being of Black Afro Caribbean descent
and having Trinidadian nationality. The claimant’s disability is
described to be lumber bulging at the spine, nerve damage to right
hand and injury to right knee with arthritis. The respondent concedes
that the claimant was a disabled person at all relevant times by the
conditions.
The Relevant Law
3. The relevant statutory provisions to which refer are:
(a) Jurisdiction and time limits- s 123 Equality Act 2010;
(b) Unfair dismissal – s98 Employment Rights Act 1996;
(c) Disability discrimination complaints ss 6,15, 20&21, 26, 27, 39
Equality Act 2010;
(d) Race discrimination complaints ss9, 15 of the Equality Act 2010;
(e) Burden of proof 136 Equality Act 2010;
(f) Breach of contract complaints Employment Tribunals (Extension
of Jurisdiction) Order 1994;
(g) Equality and Human Rights Commission: Code of Practice on
Employment (2011)
Jurisdiction – time limits and continuing acts
4. The law provides that in respect of discrimination claims and detriment
claims, if there is a continuing course of conduct it is to be treated as an
act extending over a period. Time runs from the end of that period. The
focus of the Tribunal’s enquiry must be on the substance of the
complaint that the respondent was responsible for an ongoing state of
affairs in which the claimant was less favourably treated. The burden of
proof is on the claimant to prove, either by direct evidence or by
inference from primary facts, that the alleged acts of discrimination were
linked to one another and were evidence of a continuing discriminatory
Case Number 1300969/2018
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state of affairs see Hendricks v Commissioner of Police for the
Metropolis [2003] IRLR 96 CA.
5. If any of the complaints were not in time, the Employment Tribunal must
consider whether there is nevertheless jurisdiction to hear them. In
discrimination cases the test is whether it is just and equitable to allow
the claims to be brought.
6. The statutory wording of section 123 of the EA10 is slightly different than
in the SDA and RRA and, arguably, may be wider. However, for these
purposes, we have assumed that the test it the same and that the well
established principles apply.
7. When deciding whether it is just and equitable for a claim to be brought,
the Employment Tribunal’s discretion is wide and any factor that
appears to be relevant can be considered. However, time limits should
be exercised strictly and the Tribunal cannot hear a complaint unless
the claimant convinces it that it is just and equitable to do so. The
exercise of discretion is therefore the exception rather than the rule
Robertson v Bexley Community Centre [2003] IRLR 434 .
8. Case law provides that consideration of the factors set out in section 33
of the Limitation Act 1980 is of assistance. The Employment Tribunal
should have regard to all the circumstances of the case, and in particular
to the following:
(a) the length and reasons for the delay;
(b) the extent to which the cogency of the evidence is likely to be
affected by the delay;
(c) the extent to which the party sued cooperated with any requests
for information;
(d) the promptness with which the claimant acted once he or she
knew of the facts giving rise to the cause of action; and
(e) the steps taken by the claimant to obtain professional advice once
he or she knew of the possibility of taking action.
9. In addition, when deciding whether to exercise its just and equitable
discretion, the Employment Tribunal must consider the prejudice which
each party would suffer as a result of the decision to be made
(sometimes referred to as the balance of hardship test) British Coal
Corporation v Keeble [1997] IRLR 336 EAT.
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